Mediation between Apple and Psystar supposedly leads nowhere

In what should come as a surprise to no one, the results of a court-appointed …

The court-appointed, non-binding "alternative dispute resolution" process between Apple and Psystar predictably went nowhere last week, according to an unnamed source who is a "relative to the owner of Psystar." The mediation, a standard procedure for cases in Northern California District Court, seemed to be little more than going through the motions.

Attorney for Psystar, Colby Springer, already expected as much back when the mediation was ordered by the court last fall. He said then that that he didn't believe the mediation would come to any fruitful results. "Quite frankly, all the talk about entering negotiations is really a non-story," he said.

The parties met privately as prescribed on Wednesday, February 18. According to the source speaking to the World of Apple, ostensibly related to Psystar president Rudy Pedraza, the talks did nothing to settle the issues of copyright and/or its possible misuse between the two companies. It comes as no surprise given the language ofmotions filed by both Apple and Psystar. Trial is set to begin in November of this year.

48 Reader Comments

Of course Apple isn't going to budge. Their entire business model depends on tying their software to their hardware. I think the only way out of this for Apple is for them to stop selling retail copies of their OS. They could build an online payment system into an update, allowing users to buy the updates from 10.4 to 10.5 to 10.6. But they would always only have the disks they got when they bought the Mac. Or they could buy them directly from Apple with proof of purchase. Otherwise, third party's have a right to resell what they bought, and I think that is what the courts will determine. But IANAL....

Now, see, this has nothing to do with whether or not Psystar is allowed to re-sell a legal Mac OS license - they are, of course. It's whether or not Psystar should be allowed to install Mac OS X on Psystar's hardware, thus enhancing the value of their hardware, and then selling the package for a profit. Note that part of that profit, at least, is derived from the hard work at Apple, and that Apple's EULA specifically prohibits installing the software on a non-Apple machine.

Apple is a hardware company, after all, and the OS is merely a way for Apple to differentiate itself from its competitors and thus sell more hardware. Psystar is in the business of eliminating Apple's market differentiation using Apple's own software, which is clearly wrong.

It is the general opinion that Psystar could sell these machines with a boxed copy of Mac OS X all day long and they could probably get away with that.

Hello, this is dizzle, the author of the original piece linked here. It isn't totally accurate to say that nothing happened at the mediation to move the case towards settlement. Nothing more should be read into my report other than the case did not settle on the 18th. I am a legal assistant and work with mediations all the time. Very often issues raised at mediation cause each side to reconsider the strengths and weaknesses of their case with the input of an unbiased mediator. Some of the cases I have worked on have gone to several additional voluntary mediations due to the issues discussed and then settled. Since mediations are confidential, my contact could not give me any of that information. I did get a bit of further information though that I am going to post in the comments at World of Apple.

Originally posted by TechGeek:Of course Apple isn't going to budge. Their entire business model depends on tying their software to their hardware. I think the only way out of this for Apple is for them to stop selling retail copies of their OS.

Or win in court.Or price an "OEM license" version at $499.Or lose in court, and offer an "OEM license" version at $599 (to make up the legal fees)

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They could build an online payment system into an update, allowing users to buy the updates from 10.4 to 10.5 to 10.6. But they would always only have the disks they got when they bought the Mac. Or they could buy them directly from Apple with proof of purchase. Otherwise, third party's have a right to resell what they bought, and I think that is what the courts will determine. But IANAL....

Third party's have the right to resell, but Psystar isn't only reselling.

They are modifying the OS X install disks (which they don't have the right to do AND distribute) and they are installing their modified OS X install disks (which they don't have the right to do and distribute).

If all they did was bundle a box of OS X, they would be okay.If all they did was offer a tool to "install", they would be okay.

What they do is copyright infringement (on some level).

They modify the original work (they don't have the right)They install the modified work (they don't have the right)

They only gain those rights if the court invalidates the license that comes with OS X; the license is what grants someone the right to install OS X, but no where in the license is the right to modify OS X granted.

Here is some context for my viewpoint:Cleanflicks was sued in court for "cleaning" movies and selling/renting the original alongside the modification. Since they didn't own the copyright, they didn't have the right to distribute the modified files.

Software is copyrighted just like books are and I assert that installation of said software is "making a copy", therefore the right of copying is owned by Apple. If you wish to argue that installation isn't copyright/copying, then answer this question:If you install OS X from a single CD onto 10 computers, is that copyright infringement? If it is, then how about installing onto 2 computers? If that is, then what about 1 computer if Apple actually doesn't give you the right to make that copy?

I make the conclusions based on a) that it wasn't settled, b) previous statements by Springer, c) previous statements by Pedraza made to me and other news sources, and d) Apple's vigorous defense of its IP.

I hope it's clear the the "nothing happened" characterization is my own and not that of you or your source.

If Apple implements a serial number system and that serial number in some way unlocks the key needed to decrypt system files, 2 things would happen (maybe more, but start with 2).

Users, including me, will be pissed off.

Apple will gain substantial DMCA protections against people altering the system files in any way. Right now you could claim the protections aren't really anti-piracy measures, but involve a serial number and it would clearly become anti-piracy. Then they just refuse to give out serial numbers to OEMs.

Apple could make this very hard for everyone, and i expect that in no case are we going to end up with a diverse 3rd party ecosystem of OS X compliant hardware.

OrangeCream: Why do you think its copyright infringement? If I buy a book and write in it, thereby altering it, I can still sell the book and its perfectly legal. If Psystar isn't copying Apple's software I don't see the copyright infringement. And I don't think installing it is copyright infringement as they are including the original disk with the copy on the hard drive. But it will certainly be interesting to see the outcome of the trial.

Originally posted by OrangeCream: If you wish to argue that installation isn't copyright/copying, then answer this question:If you install OS X from a single CD onto 10 computers, is that copyright infringement?

Yes.

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If it is, then how about installing onto 2 computers?

Yes.

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If that is, then what about 1 computer if Apple actually doesn't give you the right to make that copy?

(a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

So, according to the explicit wording of that law, making an adaptation of a computer program is legal, if it is an "essential step". Since without Psystar's modifications, OS X won't work on "a machine", they arguably count as "essential".

Then they merely utilize their First Sale rights to resale the software and all copies.

@OrangeCream: Your analysis sounds the most reasonable. It can't be legal to alter Apple's software, then sell it for profit. Or if it is, then the law is profoundly broken and we should be talking about how to change the law, not whether or not Psystar broke it.

@TechGeek: So you think writing in the margins of a book is similar to what Psystar is trying to pull? You're kidding, right?

Originally posted by alansky:@AnObfuscator: You're blowing smoke, just like your name.

Care to make an argument? Or is that the most erudite rebuttal you can muster?

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@OrangeCream: Your analysis sounds the most reasonable. It can't be legal to alter Apple's software, then sell it for profit. Or if it is, then the law is profoundly broken and we should be talking about how to change the law, not whether or not Psystar broke it.

It can't be legal to modify Ford's cars, then sell them for a profit. The law is clearly broken.

You do realize that Psystar is legally purchasing copies of OSX for installation and resale, right?

So, according to the explicit wording of that law, making an adaptation of a computer program is legal, if it is an "essential step". Since without Psystar's modifications, OS X won't work on "a machine", they arguably count as "essential".

Then they merely utilize their First Sale rights to resale the software and all copies.

It's not as cut-and-dried as you make it seem.

That's a good argument, with one flaw. PsyStar doesn't have a properly licensed Mac OS to sell. The only way to get an original license to run Mac OS is to buy a Mac. The "Retail" package they're buying/selling is actually an upgrade. However, even setting aside the "upgrade" question, the retail Mac OS X that PsyStar states in the license agreement:

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2. Permitted License Uses and Restrictions.A. Single Use. This License allows you to install, use and run one (1) copy of the Apple Software on a single Apple-labeled computer at a time. You agree not to install, use or run the Apple Software on any non-Apple-labeled computer, or to enable others to do so. This License does not allow the Apple Software to exist on more than one computer at a time, and you may not make the Apple Software available over a network where it could be used by multiple computers at the same time.

B. Family Pack. If you have purchased a Mac OS X Family Pack, this License allows you to install and use one (1) copy of the Apple software on up to a maximum of five (5) Apple-labeled computers at a time as long as those computers are located in the same household and used by persons who occupy that same household. By "household" we mean a person or persons who share the same housing unit such as a home, apartment, mobile home or condominium, but shall also extend to student members who are primary residents of that household but residing at a separate on-campus location. The Family Pack License does not extend to business or commercial users.

C. You may make one copy of the Apple Software (excluding the Boot ROM code and other Apple firmware that is embedded or otherwise contained in Apple-labeled hardware) in machine-readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original. Apple Boot ROM code and firmware is provided only for use on Apple-labeled hardware and you may not copy, modify or redistribute the Apple Boot ROM code or firmware, or any portions thereof.

All three paragraphs specifically mention "Apple-labeled hardware", which is the basis for having a license to use Mac OS. Either you're running it on an Apple-labeled computer and thus meet the license terms, or you don't have an Apple-labeled computer, and you don't.

The "First Sale" doctrine doesn't apply because PysStar doesn't have a legal Mac OS license that they can "adapt".

Furthermore, paragraph C indicates that the "Apple Boot ROM code and firmware" is explicitly for Apple-labeled hardware. Now, no one in their right mind would argue that "Boot ROM code" can be legally separated from the hardware it with which it is provided. Mac OS X will not work without the "Apple Boot ROM code". The only legal way to have "Apple Boot ROM code" is to buy a Macintosh, in which case, you've also purchased a license to run Mac OS.

People can try 500 different ways to skirt the issue, but the fact is that the only way to get a legal license for Mac OS is to buy a Mac. The only legal way to run Mac OS, is to run it on a machine with "Apple Boot ROM code". It's valid and it's legal. Anything else is wishful thinking and/or a license violation.

Originally posted by AnObfuscator:So, according to the explicit wording of that law, making an adaptation of a computer program is legal, if it is an "essential step". Since without Psystar's modifications, OS X won't work on "a machine", they arguably count as "essential".

Then they merely utilize their First Sale rights to resale the software and all copies.

Could I buy an upgrade copy of Vista, install it on a PC without possessing a licence for an earlier version of Windows, and not incur the wrath of Microsoft? Or an upgrade for any other piece of software that requires proof that an older version was purchased. If I hack around enough to fool the installer, does that count as an 'essential step'? Apple only sells upgrade copies of OS X at retail. Why should Psystar be allowed to use those upgrade copies as OEM copies in violation of the licence?

Originally posted by TechGeek:Why do you think its copyright infringement? If I buy a book and write in it, thereby altering it, I can still sell the book and its perfectly legal.

Yes, because you haven't copied it. Perhaps you haven't figured out yet that copyright law is about copying.

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If Psystar isn't copying Apple's software I don't see the copyright infringement.

Psystar is copying Apple's software, thereby infringing on their copyright.

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And I don't think installing it is copyright infringement as they are including the original disk with the copy on the hard drive.

What YOU think has no standing with copyright law. This has been ruled on many times by the courts. Installing a copy is copying.

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Originally posted by AnObfuscator:

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Originally posted by OrangeCream:

If that is, then what about 1 computer if Apple actually doesn't give you the right to make that copy?

No, that is my right.

It most certainly isn't. You (or Psystar) negotiated away that right when you agreed to the EULA in order to install a copy, which the courts have decided in other EULA/copyright case law that you have every right to do.

Installing is not copying in any sense that can be a violation of copyright. That is, the sale of a copy only makes sense if it is associated with the permission to install that copy. If you tried to sell copies without the right to install, you would not last long.

The retail copy is not an upgrade. Its not labelled as such, licensed as such, nor does it work like one.

Retail copies are acquired in a sales transaction, not a license transaction. Read Softman. Softman states quite clearly that the owner retains copyright (just as a book publisher does), and that this is perfectly compatible with selling one copy. This is not in the least mysterious, it is familiar to all book and record buyers.

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The Court agrees that a single payment for a perpetual transfer of possession is, in reality, a sale of personal proper [sic] and therefore transfers ownership of that property, the copy of the software.

The Court understands fully why licensing has many advantages for software publishers. However, this preference does not alter the Court's analysis that the substance of the transaction at issue here is a sale and not a license.

There is nothing puzzling about the fact that you can install on one machine without violating copyright, but not on two. This is intrinsic to the concept of the sale of one copy of something. The sale of the software implies the right to install on one. It does not imply the right to install on two. Installing on two is not fair use, it is unauthorized copying. Whether or not installing one one machine is making a copy is unimportant. It is essential to using that copy that you have bought and so you have a right to do it.

Can the publisher restrict what you can do with what you have bought? Perhaps. Take the case of a PDF. Can he restrict the right to make multiple copies? Yes, under copyright law. Can he restrict the kind of paper you make your one copy under? Yes, but not under copyright law. He will have to enter into a separate agreement. It may be that he will only sell you your copy if you enter into that separate agreement. If you then break it by printing your copy on toilet paper, it is not a violation of copyright, but of the separate agreement about paper to be used, and that may or may not be enforceable.

The question about this case, and its a very simple one, is whether the clause in the Apple EULA is enforceable on retail copies. It is a clause in a contract which you agree to when you click through to do the installation. At the moment, you can buy a retail copy of OSX, take it home, boot from it on standard Intel configurations, as long as they support the industry standard EFI, or boot from it on your old Mac made from identical components, and install OSX on it. In doing so you will have to click through and agree to the terms of the EULA. This act of entering into the contract is occurring after the sale of the copy. It is a quite separate step.

Can Apple proceed against you for doing this on a non-Apple machine? If they cannot, then they cannot proceed against someone for doing it on your behalf. If it is OK for you to do it yourself, it must be OK for you to have someone do it for you. I don't believe they can, but we will see. What we need to see is a successful suit against an end user who has done nothing more than install a piece of software into an environment which the EULA forbids. For example, someone installing OSX from the retail DVD on an efi-x machine. Someone installing MS Office under Wine, not Windows.

The secondary question is whether we want software publishers, or vendors in general, to have such rights. And here we cannot do better than quote Softman again:

quote:

Software publishers are desirous of augmenting the protections offered under copyright law. In this case, through the use of licensing, Adobe seeks a vast and seemingly unlimited power to control prices and all channels of distribution. On the other hand, in the absence of copyright law violations, the market can often best regulate prices and all subsequent transactions that occur after the first sale. Sound policy rationales support the analysis of those courts that have found shrinkwrap licenses to be unenforceable. A system of "licensing" which grants software publishers this degree of unchecked power to control the market deserves to be the object of careful scrutiny.

The importance of the case is not really about Apple. It has considerable implications for society.

"Since without Psystar's modifications, OS X won't work on "a machine", they arguably count as "essential""simply incorrect. psystar owns (and this statute pertains to) a copy of the installer. is an adaptation essential to the utilization of the installer as it was intended? once the licensing agreement is presented, does 117 mysteriously grant them the right to continue?

"Then they merely utilize their First Sale rights to resale the software and all copies"first sale only includes exact copies.

Geoff Strickler:

"PsyStar doesn't have a properly licensed Mac OS to sell"what is "properly licensed"?

"The only way to get an original license to run Mac OS is to buy a Mac"not really.

"The "Retail" package they're buying/selling is actually an upgrade"this does not impact whether they're licensable.

"The "First Sale" doctrine doesn't apply because PysStar doesn't have a legal Mac OS license that they can "adapt""nope. first sale applies, but only to the original disks (and all exact copies).

XWRed1:

"That is still up in the air isn't it?"nope.

Ally:

"Installing is not copying in any sense that can be a violation of copyright"is the software copyrighted? does installing reproduce the software? is reproduction one of the exclusive rights granted by copyright? was the reproduction authorized?

"That is, the sale of a copy only makes sense if it is associated with the permission to install that copy"just because something doesn't make sense to you, doesn't mean that it doesn't make sense. does the purchase of a copy of the installer give you the right to run the installer as intended? yep. in running the installer, is a point reached whereupon a licensing agreement is reached? yep. is this the intended application of this installer? yep. does the purchase of a copy of the installer give you the right to proceed past this in defiance of the agreement? nope.

"The retail copy is not an upgrade. Its not labelled as such, licensed as such, nor does it work like one."has the os ever been licensed to run on a machine that did not originally have a version of it installed on it? nope. are only incremental upgrades, upgrades? nope.

"Read Softman"still trotting out that dog? didn't the court differentiate between particular copies and the intellectual rights in the software? thought so.

"The sale of the software implies the right to install on one"begs the question. how does the sale make such an implication?

"Can Apple proceed against you for doing this on a non-Apple machine?"everything seems to suggest that they can.

"If they cannot, then they cannot proceed against someone for doing it on your behalf. If it is OK for you to do it yourself, it must be OK for you to have someone do it for you"unless doing so represents copyright infringement. is what is on systems that psystar sells, an exact copy of what they purchased? nope. as such, are they permitted to distribute it without authorization? nope.

"And here we cannot do better than quote Softman again"because those rights are relevant to the control of prices and channels of distribution? asinine. because first sale relates to something other than the original and its exact copies? again, asinine.

Originally posted by ruddy:It most certainly isn't. You (or Psystar) negotiated away that right when you agreed to the EULA in order to install a copy, which the courts have decided in other EULA/copyright case law that you have every right to do.

"I can think of one example of an EULA license being struck down"the license was not struck down. was there assent to the license? was anything other than the originals being resold?

"I don't see how what Psystar is doing is cut-and-dried copyright infringement"is the mac os copyrighted? is what is on the mac system an exact copy of what psystar purchased? are they authorized to sell, transfer or otherwise distribute this copy?

"Even according to Apple's lawyers, this is Breach of Contract"yep. are breach of contract and copyright infringement mutually exclusive?

Originally posted by ruddy:You (or Psystar) negotiated away that right when you agreed to the EULA in order to install a copy, which the courts have decided in other EULA/copyright case law that you have every right to do.

This is the heart, IMO, of what's broken in regards to IP law. We, the consumers, are allowed to "negotiate" away (as in "agree to this or don't use the item") our rights which are clearly enumerated in the law. I feel this should work similarly to employment law with breaks where the employee has no legal authority to "voluntarily" waive certain rights. Copyright law is (was, I suppose) intended to benefit society, not just creators of the works being protected. This is something which has been debated ad nauseum in other discussions.

It's my opinion, however, that when individuals are allowed to change the nature of the copyright "deal" via a license agreement the very nature of copyright begins to unravel. To fix this, all Congress needs to do is change all IP law so that we, the end user, cannot "negotiate" away rights, thereby creating more stringent limits than intended under the law.

Originally posted by TechGeek:OrangeCream: Why do you think its copyright infringement? If I buy a book and write in it, thereby altering it, I can still sell the book and its perfectly legal.

You modify the media, but not the content. Psystar can write up the CDs with marker and it isn't copyright infringement.

To be the same you would have to transcribe the book to another medium, change the character's names, rebind to a book, and then sell the pair.

Psystar has to technically copy the disc, modify a few bits, burn the disc, and then use the modified disc to install.

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If Psystar isn't copying Apple's software I don't see the copyright infringement.

It's the part where they have to copy the disc, modify the disc, and then reburn the disc that is copyright infringment (the easy case). The hard case is whether installing without right is infringement.

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And I don't think installing it is copyright infringement as they are including the original disk with the copy on the hard drive. But it will certainly be interesting to see the outcome of the trial.

That would be true if they hadn't modified the copy prior to installation. It is the modification that is infringement. As I said, if you actually copied your book, wrote in your copy, reprinted the modified copy, and then sold it... that is copyright infringment.

To be more clear: If I took the text of Harry Potter, changed the name to Larry Cotter, reprinted and sold it (along with the original copy), don't you think that is copyright infringment?

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Originally posted by AnObfuscator:

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Originally posted by OrangeCream: If you wish to argue that installation isn't copyright/copying, then answer this question:If you install OS X from a single CD onto 10 computers, is that copyright infringement?

Yes.

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If it is, then how about installing onto 2 computers?

Yes.

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If that is, then what about 1 computer if Apple actually doesn't give you the right to make that copy?

(a) Making of Additional Copy or Adaptation by Owner of Copy. — Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or

This would hold more weight if Psystar didn't have to modify their copy in order to get it working. If we can take "adaptation" as to mean installation, and not "adaptation" to mean "circumvent hardware checking". If "circumvent hardware checking" is a valid use then we still have the case of Psystar making TWO copies to perform an install:1 copy that is modified from the original1 copy that is installed onto the computer from the first copy

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(2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful.

So, according to the explicit wording of that law, making an adaptation of a computer program is legal, if it is an "essential step". Since without Psystar's modifications, OS X won't work on "a machine", they arguably count as "essential".

I would argue that the first (1) point is defining the installation; that the copy they made and modified is NOT defined as essential and counts as copyright infringement. At which point I would have to leave it up to the judge and lawyers to decide if I am right or wrong.

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Then they merely utilize their First Sale rights to resale the software and all copies.

It's not as cut-and-dried as you make it seem.

Their first sale right gives them only the right to sell the original and installed copy. It doesn't actually give them the right to make a second copy (since one copy is utilization, the second copy is by my estimation copyright infringement).

Originally posted by alansky:@OrangeCream: Your analysis sounds the most reasonable. It can't be legal to alter Apple's software, then sell it for profit. Or if it is, then the law is profoundly broken and we should be talking about how to change the law, not whether or not Psystar broke it.

It can't be legal to modify Ford's cars, then sell them for a profit. The law is clearly broken.

Modifying a copy? Or modifying the original?

In Psystar's case they are modifying the copy. And by modifying a copy they have to be performing copying in the first place; and if they are copying, they are committing, basely, copyright infringement.

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You do realize that Psystar is legally purchasing copies of OSX for installation and resale, right?

They don't have the right to make two copies, however, in order to install.

If they had machines that installed without modification then they have every "right" to install.

If you want to use your Ford car example, Psystar would have to acquire a Mustang, legally, then go to China, set up a factory, and manufacture their OWN Mustangs, compatible with Mustang parts available from Ford and aftermarket, but not actually be a Mustang.

In other words, a knock-off. Then to continue the example, they would market it as "The Mustang you can afford"* and sell it for cheaper.

At that point, would you argue Psystar is in the right? If they didn't use any of the trademarks, the looks, or the branding, then they wouldn't run afoul of IP law; they would just be another manufacturer of performance cars.

The first thing you need to understand about the Autodesk decision is that it did not rule on the general enforceability of Autodesk's EULA terms. Vernon did not agree to a EULA. He never installed anything. He never copied anything. The court found no breach of contract as Autodesk claimed, simply because there was no contract.

The Softman decision is similar. It did not rule on the enforceability of Adobe's EULA as Ally wants everyone to believe. Absent agreeing to a EULA, first sale doctrine governs the sale of the installer disks. First sale doctrine gives you the right to buy and sell boxes and disks and installers, and you can do whatever you want with them, sell them, give them away, or play frisbee with them. But in no way does first sale grant you any rights to the IP on the disk. For that you have to get past the EULA, and once you agree to the terms, you will be legally bound to them.

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I guess the crux is, I don't see how what Psystar is doing is cut-and-dried copyright infringement, on its own.

Psystar has agreed to the OSX EULA in order to install it on their hardware. In doing so they breach the terms of the EULA that specifies Apple-only hardware. That breach makes the copy they install an illegal, unauthorized, and infringing one.

Originally posted by ruddy:You (or Psystar) negotiated away that right when you agreed to the EULA in order to install a copy, which the courts have decided in other EULA/copyright case law that you have every right to do.

This is the heart, IMO, of what's broken in regards to IP law. We, the consumers, are allowed to "negotiate" away (as in "agree to this or don't use the item") our rights which are clearly enumerated in the law.

What right are we talking about here, now? The right to make copies? That right is actually owned by copyright holders, not consumers!

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... Copyright law is (was, I suppose) intended to benefit society, not just creators of the works being protected.

I thought it was supposed to benefit society BY protecting creators, giving them incentive to create? I mean, the whole body of copyright/IP law grants the creator a monopoly (per se).

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...It's my opinion, however, that when individuals are allowed to change the nature of the copyright "deal" via a license agreement the very nature of copyright begins to unravel.

Well... I like using the GPL as an example too. The law says only the copyright owner has the "right" to make copies, except for a few corner cases (such as ripping a CD so we can use it on a different medium). Perhaps the judge will rule that we as consumers have a similar right to "rip" the installer so we can use it on a different machine...

But still, this is relevant. Even if consumers have the right to rip (and in the US they do), MP3.com was found not to have the right of "making mechanical copies for commercial use without permission from the copyright owner."

Making modified copies of OS X seems to me "making mechanical copies", and installing on Psystar computers seems to be "for commercial use", and not having a license from Apple appears to be, "without permission from the copyright owner", doesn't it?

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To fix this, all Congress needs to do is change all IP law so that we, the end user, cannot "negotiate" away rights, thereby creating more stringent limits than intended under the law.

That would mean Apple, as the copyright owner, would not be able to negotiate away their rights either...

Originally posted by ruddy:You (or Psystar) negotiated away that right when you agreed to the EULA in order to install a copy, which the courts have decided in other EULA/copyright case law that you have every right to do.

This is the heart, IMO, of what's broken in regards to IP law. We, the consumers, are allowed to "negotiate" away (as in "agree to this or don't use the item") our rights which are clearly enumerated in the law. I feel this should work similarly to employment law with breaks where the employee has no legal authority to "voluntarily" waive certain rights. Copyright law is (was, I suppose) intended to benefit society, not just creators of the works being protected. This is something which has been debated ad nauseum in other discussions.

It's my opinion, however, that when individuals are allowed to change the nature of the copyright "deal" via a license agreement the very nature of copyright begins to unravel. To fix this, all Congress needs to do is change all IP law so that we, the end user, cannot "negotiate" away rights, thereby creating more stringent limits than intended under the law.

This is nonsense. All you need do is ask yourself whether or not society benefits from a software industry. Why should the courts prevent consumers from negotiating away rights that most of them will never use? Most consumers will never reverse engineer anything. Most consumers will never try to install MacOS on anything but Apple hardware. Why should the courts tell them they can't enjoy the benefits of OSX or any other innovative software? What the courts will protect consumers from is fraud or unconsionable clauses in EULAs. Restricted licensing terms protect the software industry's IP which is very much in keeping with the intent of the Constitution's copyright clause which is to encourage progress in the sciences and useful arts by granting exclusive rights to copyright holders.

In this case, Softman Products had bought Adobe software at retail. It then unbundled it, and sold its component parts separately. The EULA which accompanied the software provided that this was not allowed. If you resold the software you were obliged to sell it in a bundle.

The first question was whether the sale was a license or a sale. The judgment states explicitly that the transaction is a sale of a copy. This is not open to dispute.

The second question is whether, before you have clicked through in the course of installation, you are bound by the EULA. The answer is no. This is why Adobe lost this case. This is also not open to dispute.

There are many questions about EULAs and licenses which are not addressed by Softman. But these two questions are. What are the implications?

If you buy a retail copy of OSX you have then, as you stand outside the store on the pavement, bought a copy, you have not licensed it. You have also not yet agreed to the EULA and are not yet bound by it.

If you go home, boot from the DVD, and click through the EULA, you have agreed to a contract which is different from the contract of purchase of a copy, which among other things prohibits you from performing the installation on a non-Apple machine. You have now moved beyond what Softman covers. Is this clause binding and enforceable? Opinions differ. We will find out together in November or thenabouts.

It is sometimes argued that this installation is prohibited by copyright, and requires an additional permission because it involves making a copy. This is also not covered by Softman. This additional permission, it is said, may then involve limitations on what machine the copying is done on. This is wrong. Someone quoted the following:

quote:

Notwithstanding the provisions of section 106, it is not an infringement for the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided:

(1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner

This is why the issue comes up in its clearest form in the case of an installation using efi-x. Here we are simply making the copy as an essential step in the utilization of the computer program, and it is indeed used in no other manner. We have every right to do it. Those who argue that we require a special additional permission, having bought the software, to install it, because this is making a copy which may or may not be authorized, dare simply wrong. Once you have sold me a copy of the software, you have given me all the copyright permissions I need in order to install it.

Can you however, in selling it, and in giving these permissions, restrict how and on what I make this copy? The answer is no.

As I said earlier, just as you cannot, by copyright, tell someone on what type of paper he may print the one copy you have agreed that he may may make, so you cannot, by copyright, stipulate what hardware he may install the package on. Or what other packages may be on the machine where he does the installation.

But this does not mean that there is no way for you to restrict the hardware on which he does the installation. This will come into play most clearly with efi-x and similar solutions, which strips out all the other circumstances from the case, and leaves the essence of it clear. You have bought the DVD, your copy of OSX, and taken it home. You have separately installed the efi-x dongle, or you have in some other way made your machine EFI capabale. You now unwrap it, boot from the DVD, and start the installation.

To complete the installation you will have to click through, which means you will have to enter into the contract in the EULA. This is analogous to when I sell you the PDF, with the right to make one copy, and sign a separate contract with you that this copy is only to be made on parchment. Or perhaps you find that when you open the PDF there is a click through stipulating that your copy must be printed on parchment, and you only get to continue by clicking 'I agree'. This may or may not be binding, but it has nothing to do with copyright. It is not a violation of [b[copyright[b] if I make my copy on toilet paper. It is a violation of this contract. Copyright violation is a criminal matter. Violating this contract will be a civil matter.

You can see this from the fact that if copyright were sufficient to allow restrictions of this kind, there would be no need for click through licenses. But there is such a need.

This is why the only important question at issue in the OSX locking question is whether such clauses in contracts are valid. Hopefully this is what we will find out in the Psystar case. But if not, we will undoubtedly find it out in the case of efi-x, either because of Apple's action and a court proceeding, or Apple's inaction (which I find more probable). And we will find out whether the situation is the same or different in Europe with the PearC situation, where I predict Apple will take no action. It is going to be an interesting year.

Macs come with Mac OS X. That's the original license. So the only way to buy it is to buy the hardware.

Apple then sells upgrades to the OS for existing customers.

Aside from OS X Server, I don't think you CAN buy a "new" license of OS X, only an upgrade license.

Compare to Windows: you can't buy the upgrade license and a new PC and use it: you have to be upgrading something that you already have licensed. If you want a full version, you have to buy the full version. Apple only sells the full version WITH HARDWARE, so you can't get that license by simply purchasing an upgrade, can you?

"You have now moved beyond what Softman covers"then why the fuck do you keep bringing up softman?

"Once you have sold me a copy of the software, you have given me all the copyright permissions I need in order to install it"bullshit. since you keep bringing up softman, why don't we apply it here. according to the court you have purchased a particular copy, but have no additional right to intellectual property. you may run the installer, period. once you get to the licensing agreement, it is up to you to agree or not to agree., there is no third option.

"It is not a violation of [b[copyright[b] if I make my copy on toilet paper"since it would a violation to make a copy at all, and that the only authorization would be through agreeing to the license, any breach of the license would vitiate the authorization. since there would be no authorization, it would be copyright infringement.

"Copyright violation is a criminal matter"copyright infringement can be civil, criminal, or both. so, what?

First, I would like to say how refreshing it is to see a discussion (particularly one involving Apple) where many people are actually discussing the issue and not just bashing/praising one side or stating what they WANT the result to be as if it's a fact. Thank you.

quote:

It's my opinion, however, that when individuals are allowed to change the nature of the copyright "deal" via a license agreement the very nature of copyright begins to unravel. To fix this, all Congress needs to do is change all IP law so that we, the end user, cannot "negotiate" away rights, thereby creating more stringent limits than intended under the law.

To start with, you have no rights to a copyrighted item except those explicitly granted by the copyright holder when you purchase a copyrighted item. That purchase is subject to certain terms that vary depending upon the item being sold. Having said that, there are terms of some contracts that the courts have said can not be waived, so it is possible that congress and/or the courts could do that.

One of those terms may include a usage license limiting how you may use that item. For Books, movies, and audio recordings, they generally contain a restriction on public performance or for profit performance of the work. Software almost always includes an EULA, and in general, a EULA has been deemed enforceable in the US. Whether or not the specific terms of this EULA are all enforceable is the heart of this case.

People in this discussion have stayed away from DMCA arguments, which is good, because this should not be a DMCA case.

This case is primarily a contract dispute over violating the terms of the EULA. However, the EULA is part of the agreement under which the copyright is licensed, so a EULA violation can be a copyright violation.

Furthermore, if PsyStar is in fact modifying any of the copyrighted software on the Mac OS X DVD and providing that to their users (regardless of whether they're also transfering the original Mac OS X DVD), then they a producing modifying a copyrighted work and redistributing it, which is almost always a copyright violation unless the copyright holder or "fair use" grants the right to produce and distribute derivative works.

There is no automatic or inherent right to distribute derivative works in software. If it's not granted by the copyright holder, it doesn't exist.

If what PsyStar is distributing is not a modification of any of Apple's copyrighted OS X software, then they have a different problem. In that case, they're distributing a tool (software) whose only purpose is to enable the end user to violate the EULA of Mac OS X. This is unlike software for "ripping" a CD you purchased and converting it to MP3 or AAC format, because that software has legitimate uses under "fair use" and for stuff you've personally recorded. PsyStar's software has no use except to violate the terms of the Mac OS X license. PsyStar is further complicit in this by actively promoting that users use PsyStar hardware and software to violate the Mac OS X EULA, by distributing the software to do so with their hardware and Mac OS X, and by profiting from those actions.

PsyStar has a serious problem regardless of whether what they're doing is a determined to be a copyright violation.

Originally posted by Geoff Strickler:This case is primarily a contract dispute over violating the terms of the EULA. However, the EULA is part of the agreement under which the copyright is licensed, so a EULA violation can be a copyright violation.

That may be what this discussion is primarily about, but it's not what the whole dispute is primarily about. The trademark and unfair competition claims have nothing to do with the EULA, copyright or contract law. Even in the unlikely event that the judge declares Apple guilty of copyright misuse, and declares Apple's OSX copyrights invalid, Psystar will still be destroyed on trademark infringement and dilution, for which there is little, if any, defense.

That may be what this discussion is primarily about, but it's not what the whole dispute is primarily about. The trademark and unfair competition claims have nothing to do with the EULA, copyright or contract law. Even in the unlikely event that the judge declares Apple guilty of copyright misuse, and declares Apple's OSX copyrights invalid, Psystar will still be destroyed on trademark infringement and dilution, for which there is little, if any, defense.

The unfair competition claim by PsyStar is a shot in the dark attempting to back up their claims of copyright misuse. It's a red-herring and not central to this case. It's completely without merit (IMHO).

Apple's Trademark claims have more substance, but they're still secondary to the core argument which is whether the EULA is valid and legal. At it's core, it's a contract dispute over the terms of the EULA. The results may or may not have larger implications in copyright law because the contract in dispute is one that is part of a copyright initiated transaction.

Originally posted by Geoff Strickler:The unfair competition claim by PsyStar is a shot in the dark attempting to back up their claims of copyright misuse. It's a red-herring and not central to this case. It's completely without merit (IMHO).

I was referring to Apple's unfair competition claims under California state law.